Anthony Longhitano et al. v. Zoning Board of Appeals of the Town of Essex et al. (2013)

MEMORANDUM OF DECISION

This is an appeal from the Essex Zoning Board of Appeals' (“ZBA”) unanimous approval of the application of the defendants, George and Susan Baker (“Bakers”), for variances on their property located at 9 South Cove Lane, Essex, Connecticut (“Property”).

Factual and Procedural Background

On September 28, 2012 the Bakers filed an Application for variances ¹ for the Property.   A hearing was held on the application on October 16, 2012.   The plaintiffs' tenant spoke at the hearing and made generally the same objections as the plaintiffs make in their appeal.   The Essex Zoning Board of Appeals (“ZBA”) granted the application by unanimous vote on October 16, 2012 and again on December 18, 2012.²

The Property is located in a Rural Residence (“RU”) zone.   In 2000 the Essex Zoning Commission doubled the size for conforming lots in the RU zone from 40,000 square feet to 80,000 square feet.   As a result, many lots in the RU zone became nonconforming.   Worried that the larger lot size would permit the building of “McMansions,” the Zoning Commission also reduced the lot coverage in the RU zone from 15% to 7.5%. This reduction adversely impacted smaller, nonconforming lots like the Bakers.   On the evening of the Baker hearing, over 70% of the applications involved coverage issues.

The Bakers' application resulted in the reduction of three nonconformities:  the existing garage is located 10 feet from the west side line and the proposed garage will be 16.2 feet from that line;  the existing garage is 4.6 feet from the rear line and the proposed garage is 7.8 feet from that line;  the existing garage contains 432 square feet and the proposed garage contains 341.25 square feet.

The application also eliminated two nonconformities.   The existing house intrudes 6 feet into the 50–foot Gateway Conservation District setback from the river and is non-conforming.   The proposed house eliminates this nonconformity.   There is a hatchway on the existing house which intrudes into the rear setback and is only 16.6 feet from the rear line.   This hatchway is being removed, thus eliminating the non-conformity.

The Property is encumbered by three easements which run easterly from the end of South Cove Road to the South Cove of the Connecticut River.   There is a 15–foot drainage easement to the Town of Essex, a 20–foot right of way, which is the continuation of South Cove Road, and a 50–foot view easement, which covers 40% of the Property and benefits the property of the plaintiffs.   None of the other lots in the subdivision are affected by these easements.   The 50–foot Gateway setback covers an additional 24% of the Property.   Thus, 64% of the Property is covered by the foregoing easements and setback.   Only one other lot in the subdivision is covered by the Gateway setback, 10 South Cove Lane, a lot more than three times as large as the Property.

The Bakers' existing house contains 1,397 square feet not including the attic.   The proposed house contains 2,324 square feet not including the attic.   The proposed house is taller than the existing house, but is below the maximum allowed.   The Bakers were granted a variance to increase coverage to 10% giving the house a footprint of 1,213 square feet.   By comparison, the plaintiffs' lot is slightly smaller than the Bakers,' but has a footprint of 2,589 square feet, which results in 19.1% coverage.

Discussion of the Law and Ruling

Connecticut General Statutes § 8–6 provides that the Zoning Board of Appeals has the power “(3) to determine and vary the application of the zoning bylaws, ordinances or regulations ․” There must be a showing of legal “hardship” in order for a Zoning Board of Appeals to grant a variance.   Grillo v. Zoning Board of Appeals, 206 Conn 362, 368, 537 A.2d 1030 (1988);  Ward v. Zoning Board of Appeals of Hartford, 153 Conn. 141, 143, 215 A.2d 104 (1965).

As owners of 7 South Cove Lane, which abuts the Property, the plaintiffs are statutorily aggrieved under Connecticut General Statutes § 8–8(1).

Once a decision is made by the Zoning Board of Appeals, the court on an appeal by an aggrieved party, is limited in its review to a determination as to whether or not the defendant Board acted illegally, arbitrarily, or in an abuse of its discretion.  Horn v. Zoning Board of Appeals of Norwalk, 18 Conn.App. 674, 677, 559 A.2d 1174 (1989).   Judicial review of the Board's decision is narrowly circumscribed, as “the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.”  Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137–38, 677 A.2d 987 (1996).   In the performance of its variance function, a Zoning Board of Appeals is given a liberal discretion in its action and the court cannot reverse the agency decision “so long as honest judgment has been reasonably and fairly exercised after a full hearing.”  Whittaker v. Zoning Board of Appeals of Trumbull, 179 Conn. 650, 654, 427 A.2d 1346 (1980).

General Statutes § 8–6(a)(3) provides that zoning boards of appeal may vary the application of zoning regulations if (1) the variance is shown not to affect substantially the comprehensive plan and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to carrying out the general purpose of the plan.  Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 273, 624 A.2d 909 (1993), citing Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368.   The statute provides that the board may grant variances with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured ․ To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control ․ The applicant bears the burden of demonstrating the existence of a hardship.  (Internal quotation marks omitted.)  Norwood v. Zoning Board of Appeals, supra, 62 Conn.App. 532–33.

Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 568–9, 785 A.2d 601 (2001).

In Vine v. Zoning Board of Appeals of Town of North Branford, 281 Conn. 553, 916 A.2d 5 (2007), the plaintiff argued, as the plaintiffs here argue, that variances should not be granted “unless the enforcement of the zoning regulations would entail exceptional hardship to the property owner.”  Id. at 570.   The Court disagreed, stating that “We are compelled to agree with the board that it would raise form over substance to insist on that principal when there is no claim or evidence that granting the variance could result in even minimal harm to the neighborhood or undermine in any way the overarching zoning scheme, especially when there is substantial evidence to support conclusion that it would result in a more conforming use.”  Id. at 570–71, emphasis added.

There is no evidence in the record that the variance granted to the Bakers would cause any harm to the neighborhood or the comprehensive zoning plan.   As in Vine, the Bakers are reducing nonconforming buildings and erecting less offensive buildings in their place.   This will result in a more conforming use with structures which will more closely comply with the zoning regulations and general zoning scheme.

In Hescock v. Zoning Board of Appeals of Town of Stonington, 112 Conn.App. 239, 962 A.2d 177 (2009), the court upheld the granting of a variance to build a new house lying partly within the setback zone from the mean high water line, because the new house would be set further back from the water line than the current house, reducing the nonconformity.   In the present case the Bakers proposed to move their house entirely out of the Gateway set back.   Similarly, in Stancuna v. Zoning Board of Appeals Town of Wallingford, 66 Conn.App. 565, 572, 785 A.2d 601 (2001) and Adolphson v. Zoning Board of Appeals of Town of Fairfield, 205 Conn. 703, 708–10, 535 A.2d 799 (1988), reduction in non-conformities was found to be a valid basis for granting variances.

The variances granted by the ZBA in the present case were also properly granted because adherence to the strict letter of the zoning regulations would cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.   The showing of an “unusual hardship” on the land must be “owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated” § 8–6(a)(3) and must originate from the zoning ordinance itself.  Whittaker v. Zoning Board of Appeals of Trumbull, supra, at 658.  “The hardship must be different in kind from that generally affecting properties in the same zoning district, and must be from circumstances or conditions beyond the control of the property owner.”  Smith v. Zoning Board of Appeals of Town of Norwalk, 174 Conn. 323, 327, 387 A.2d 542 (1978).

There was clearly evidence in the record to establish that the Bakers' Property, burdened by a view easement, a drainage easement, a right of way and the Gateway setback, is faced with the unusual hardship of an extremely limited buildable area without varying the existing zoning regulations.   The hardship is unique to the Property and does not affect other properties in the district.

The plaintiffs argue that the Bakers have created the easements and, therefore, the easements constitute self-created hardships.   There is no evidence in the record that the Bakers created any of the easements on the Property.   The plaintiffs have failed to offer any legal or factual support for the argument.

The ZBA did not act illegally, arbitrarily, or in an abuse of its discretion in granting the Bakers' application for variances.   Adherence to the strict letter of the zoning regulations would cause unusual and unique hardship.   The variances will not have a substantial negative effect on the comprehensive zoning scheme and will reduce and eliminate certain nonconformities, thereby promoting the general zoning scheme.   In granting the variances, the ZBA exercised its honest judgment reasonably and fairly after a full hearing.   The plaintiffs' appeal is denied.

By the court,

Aurigemma, J.

FOOTNOTES

FN1. The application sought a variance to the following Essex Zoning Regulations:40C. BUILDINGS. No building shall be so built or placed in any location as to leave less than the prescribed space of the setbacks required for it in these Regulations.40D. IMPROVEMENTS. No improvement shall be made except in conformity with these Regulations.40E. CHANGES. No change shall be made in the use of any land or improvement, in the location of any improvement, or in the size or shape of any lot or improvement except in conformity with these Regulations.40I. SETBACKS. The following rules shall govern the determination for required setbacks:40I.1 GENERAL. Except as otherwise prescribed in 40I.2 required setbacks shall be open and unobstructed to the sky, except for the ordinary projection, not exceeding 2 feet of windowsills, beltcourse cornices, eaves, chimneys and other architectural features of the building for which such setbacks are required and except for trees and shrubs.   Where an existing building or structure is nonconforming with respect to a setback or setbacks, an increase in the height of that portion of the building or structure which does not conform with the required setback therefore, shall constitute an impermissible enlargement extension or expansion of a nonconforming characteristic.   No land shall be included in computing the required setback or other open space of more than one building.50C. CHANGE TO NONCONFORMITY50C.1 A nonconforming use of any land or improvement may not be changed to a different nonconforming use.50C.2 A nonconforming characteristic of any land or improvement may not be changed to a different nonconforming characteristic nor increased in numerical magnitude.50D. EXTENSION OR EXPANSION.   No use of any land or improvements having a nonconforming characteristic, and no improvements having a nonconforming characteristic, shall be enlarged, or expanded except in conformity with these Regulations.61B. REQUIRED CHARACTERISTICS.   The lot and the buildings involved in any general or special use in Rural Residence District shall conform to the following characteristics.101D GATEWAY BUFFER AREA. Anything to the contrary in these Regulations notwithstanding no building or other improvement shall be located within 50 feet measured in a horizontal plain, of any point on the mean high water line of the Connecticut River or the portion of the Falls River easterly, or downstream of River Road..  FN1. The application sought a variance to the following Essex Zoning Regulations:40C. BUILDINGS. No building shall be so built or placed in any location as to leave less than the prescribed space of the setbacks required for it in these Regulations.40D. IMPROVEMENTS. No improvement shall be made except in conformity with these Regulations.40E. CHANGES. No change shall be made in the use of any land or improvement, in the location of any improvement, or in the size or shape of any lot or improvement except in conformity with these Regulations.40I. SETBACKS. The following rules shall govern the determination for required setbacks:40I.1 GENERAL. Except as otherwise prescribed in 40I.2 required setbacks shall be open and unobstructed to the sky, except for the ordinary projection, not exceeding 2 feet of windowsills, beltcourse cornices, eaves, chimneys and other architectural features of the building for which such setbacks are required and except for trees and shrubs.   Where an existing building or structure is nonconforming with respect to a setback or setbacks, an increase in the height of that portion of the building or structure which does not conform with the required setback therefore, shall constitute an impermissible enlargement extension or expansion of a nonconforming characteristic.   No land shall be included in computing the required setback or other open space of more than one building.50C. CHANGE TO NONCONFORMITY50C.1 A nonconforming use of any land or improvement may not be changed to a different nonconforming use.50C.2 A nonconforming characteristic of any land or improvement may not be changed to a different nonconforming characteristic nor increased in numerical magnitude.50D. EXTENSION OR EXPANSION.   No use of any land or improvements having a nonconforming characteristic, and no improvements having a nonconforming characteristic, shall be enlarged, or expanded except in conformity with these Regulations.61B. REQUIRED CHARACTERISTICS.   The lot and the buildings involved in any general or special use in Rural Residence District shall conform to the following characteristics.101D GATEWAY BUFFER AREA. Anything to the contrary in these Regulations notwithstanding no building or other improvement shall be located within 50 feet measured in a horizontal plain, of any point on the mean high water line of the Connecticut River or the portion of the Falls River easterly, or downstream of River Road.

FN2. Due to an error in publication of the notices, the Bakers had the ZBA rehear the application on December 18, 2012..  FN2. Due to an error in publication of the notices, the Bakers had the ZBA rehear the application on December 18, 2012.

Aurigemma, Julia L., J.